Federal Court: Do practitioners have a 'right' to object to unfair questions at Tribunal hearings? Must joint liabilities be owed between applicant and sponsor or must they be owed by them, jointly, to others? If applicant and sponsor owe financial obligations to each other, can that tell against the existence of a relationship? Can the gifting of a car tell against the pooling of financial resources? Can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?
Summary and discussion
The Minister refused to grant the Appellant a partner visa and the Appellant applied to the Tribunal for merits review of that decision.
The Tribunal affirmed the Minister's decision and the Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision. The FCCA dismissed that application and the Appellant appealed the FCCA's decision to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: are practitioners expected to object to a question made by the Tribunal if the they believe the question is unfair?
Question 2: is the reference to "joint liabilities" under r 1.15A(3)(a)(ii) of the Migration Regulations 1994 a reference to liabilities owed between visa applicant and sponsor or liabilities owed by them, jointly, to others?
Question 3: if applicant and sponsor owe financial obligations to each other, can that tell against the existence of a genuine relationship?
Question 4: can the gifting of a car tell against a "pooling of financial resources" pursuant to r 1.15A(3)(a)(iii)?
Question 5: can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?
Question 6: was the Tribunal entitled to take into account the age difference between the Appellant and the sponsor?
Question 7: could savings of $4,526 demonstrate the couple's goal to purchase a house together, in the circumstances of this case?
Question 8: was the Tribunal expected to consider any interests arising under the Family Law or in equity if those interests were not brought to its attention?
The FCA answered as follows...
Answer 1: yes.